Constitutional Law

Mandatory Death Penalty under the Atrocities Act, 1989

Anmol Jain

Every death penalty case before the court deals with a human life that enjoys certain constitutional protections and if life is to be taken away, then the process must adhere to the strictest and highest constitutional standards.




On May 10, the Supreme Court of India issued a notice to the Government on a PIL challenging Section 3(2)(i) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, which reads as under:

Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any member of a Scheduled Caste or a Scheduled Tribe to be convicted of an offence which is capital by the law for the time being in force shall be punished with imprisonment for life and with fine; and if an innocent member of a Scheduled Caste or a Scheduled Tribe be convicted or executed in consequence of such false or fabricated evidence, the person who gives or fabricates such false evidence, shall be punishment with death.

It is the argument of the petitioner that the second sentence of this provision mandates mandatory death penalty without the exercise of judicial discretion and thus, prays the Court to strike down the provision for being ultra vires the Constitution of India and the fundamental tenants of the constitutional law.

The petitioner highly relies on judgments of the Supreme Court in Mithu v. State of Punjab [1983 (2) SCC 277] and State of Punjab v. Dalbir Singh [2012 (3) SCC 346], along with the decision from various other Supreme Courts. In Mithu, the Supreme Court of India struck down Section 303 of the Indian Penal Code, which mandated death penalty for the one, who being under the sentence of imprisonment for life commits murder. The Court relied upon the 35th Report of the Law Commission of India, which had accorded acceptance to death penalty as a justifiable punishment,[1] however noted that:

For the offence under Section 303, Indian Penal Code, the sentence of death penalty is mandatory. The reason for this is that in the case of an offence committed by a person who is under sentence of imprisonment for life, the lesser sentence of imprisonment for life would be a formality. It has, however, been suggested that even this offence the sentence should not be mandatory. We have considered the arguments that can be advanced in support of the suggested change. It is true that, ordinarily speaking, leaving the court no discretion in the matter of sentence is an approach which is not in conformity with modern trends.

The court also reflected on a Bill introduced in the Rajya Sabha to delete the provision and finally held, speaking through Y.V. Chandrachud, J. that: “we are of the opinion that Section 303 of Penal Code violates the guarantee of equality contained in Article 14 as also the right conferred by Article 21 of the Constitution that no person shall be deprived of his life or personal liberty except according to procedure established by law.

In his concurring opinion, Chinnappa Reddy, J. beautifully summarised the essence of the Judgment, which is worth extraction in full:

Judged in the light shed by Maneka Gandhi and Bachan Singh, it is impossible to uphold Sec. 303 as valid. Sec. 303 excludes judicial discretion. The scales of justice are removed from the hands of the Judge so soon as he pronounces the accuse guilty of offence. So final, so irrevocable and so irrestitutable is the sentence of death that no law which provides for it without involvement of the judicial mind can be said to be fair, just and reasonable. Such a law must necessarily be stigmatised as arbitrary and oppressive. Sec. 303 is such a law and it must go the way of all bad laws.

In Dalbir Singh, the Court held as unconstitutional Section 27(3) of the Arms Act, which read as under:

“… whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of sec.7 and such use or act results in the death of any other person, shall be punished with death.

However, there are several other important aspects which the petition did not reflect upon. This article is an endeavour to provide the same in order to intensify the arguments made in the petition.

Other Issues Pertaining to Mandatory Death Penalty as a Punishment

The Judgment in Bachan Singh

It would not be wrong to state that Bachan Singh v. State of Punjab, a 1980 judgment, lays down the gospel for the law on death penalty in India. The case pertained to a constitutional challenge to the validity of death penalty for murder, which was accordingly upheld by the majority. I wish to refer to three specific statements of the Supreme Court which shall form the base of this article.

First, while delving into the discussion on the validity of the death penalty, the Court had specifically stated that “This apart, the Penal Code prescribes ‘death’ as an alternative punishment to which offenders may be sentenced …” The focus on the ‘alternativeness’ of death penalty is so intense that the court has mentioned this phrase in numerous occasions in the Judgment. Therefore, it shall be correct to assume that this element of judicial discretion and alternativeness among punishment based on the nature of crime and criminal allowed the Supreme Court to uphold the constitutionality of death penalty.

Second, at one instance, the Court mentioned that “Nonetheless, the fact remains that such murders which do not affect ‘public order’, even the provision for life imprisonment in Section 302, Indian Penal Code, as an alternative punishment, would not be justifiable under Cls. (2), (3) and (4) as a reasonable restriction in the interest of ‘public order [under Article 19 of the Constitution]’.” This is a strong conclusion. Again, the focus lies on the judicial enquiry with respect to the determination of the consequences of an offence and depending on such consequences, a discretion is granted to the judges to determine a punishment for murder. This entire analysis is taken out of judicial scrutiny in the cases of mandatory death sentences.

Third, and the most important conclusion of the Bachan Singh’s case is the doctrine of rarest of the rare cases which states that death penalty ought not to be granted save in rarest of the rare cases when the alternative option is unquestionably foreclosed. This doctrine comprises of two parts: first, the offence should be rarest of the rare that shocks the human consciences and it is to be determined based on, inter alia, nature of the crime, aggravating circumstances etc.; and second, the alternative option is unquestionably foreclosed. We need to understand such focus on the alternativeness of death penalty. Justice Bhagwati stated in his dissent in the Bachan Singh’s case that there is no way to accurately predict with any degree of moral certainty that the accused will not be reformed or is incapable of reformation, “All we know is that there have been many successes even with the most vicious of cases.

Moreover, on April 25, the Madras High Court rightly noted that:

No one is born as a criminal. The men and the women on death row have some combination of bad genes, bad parents, bad environments, and bad ideas. Which of these quantities, exactly, were responsible for his genes or his upbringing, yet we have every reason to believe that these factors determine his character. Our system of justice should reflect an understanding that any of us could have been dealt in a very different hand in life.

This summarizes the plea for not having mandatory death penalty in the penal books as it crushes the dignity of a human being and disrespects the theories of crimes.

Section 3(2)(i) of the Atrocities Act, 1989 reflects the theory of retribution

The language of the impugned section grossly imposes retribution on the accused whose acts have led to a wrongful conviction or execution of a SC/ST member. In multiple cases, the Supreme Court of India has held that criminal punishment for the sake of retribution has no place in the scheme of a civilized jurisprudence as it lacks constitutional values by depriving a person of her life and liberty. [Rajendra Prasad v. State of Uttar Pradesh, 1979 (3) SCC 649; Deena v. Union of India, 1983 (4) SCC 645; Shatrughan Chauhan v Union of India, 2014 (3) SCC 1].

Inability to refer to the Mitigating Circumstances

Recently, in Chhannu Lal Verma v. State of Chhattisgarh, the Supreme Court indulged in an extensive analysis on the effects of mitigating circumstances on the sentence of an accused. The Court referred to the Judgments in Bachan Singh and Machhi Singh v. State of Punjab, and re-emphasized the need to consider mitigating circumstances while exercising the judicial discretion. Such mitigating circumstances include age of the criminal, his mental condition at the time of the crime, possibility of reformation, whether the criminal was under duress or considered himself morally justified committing the act, etc. It was held that due regard should be given to crime as well as the criminal while determining the punishment. The Court also referred to its Judgment in Santosh Bariyar v. State of Maharashtra and Shankar Kisanrao Khade v. State of Maharashtra, wherein it was held that such mitigating circumstances include the characteristics and socio-economic background of the offender, and due regard must be given to them. While awarding death sentence, the courts must apply the ‘crime test’, the ‘criminal test’ and the ‘R-R test (rarest of the rare)’.

When the law provides for mandatory death penalty, no space is left for conducting such inquires. Immediately upon the determination of the fact of false conviction, the party has to be given death penalty. Therefore, it is argued that Section 3(2)(i) is a grave violation of right to life and essential freedoms, and grant of death penalty without considering the context in which the crime was committed cannot be sustained in a constitutional society like ours.


On his last in the Office, Kurian Joseph, J. highlighted the flagrant and inconsistent application of the rarest of the rare cases doctrine and in light of the 262nd Report of the Law Commission of India recommending abolition of the death penalty,[2] held in Chhannu Lal Verma v. State of Chhattisgarh that:

Till the time death penalty exists in the statute books, the burden to be satisfied by the judge in awarding this punishment must be high. The irrevocable nature of the sentence and the fact that eh death row convicts are, for that period, handing between life and death are to be duly considered. Every death penalty case before the court deals with a human life that enjoys certain constitutional protections and if life is to be taken away, then the process must adhere to the strictest and highest constitutional standards. Our conscience as judges, which is guided by constitutional principles, cannot allow anything less than that.

Mandatory death penalty goes directly in contravention of this dictum. Similarly, in the last year, the Washington Supreme Court also recognized the arbitrary and racially biased manner of imposing of death penalty and therefore, declared it as unconstitutional holding that it fails to serve any penological goals. Such arbitrary imposition of the death penalty also compelled Justice Bhagwati to deliver a dissenting opinion in the Bachan Singh’s case, wherein he held death penalty as unconstitutional in light of Articles 14 and 21 of the Constitution.

Not only are the courts forwarding in a progressive direction, the Church joins them on an equal note. A couple of months before the decision of the Washington Supreme Court, Pope Francis sanctioned an amendment to the paragraph number 2267 of the Catechism of the Catholic Church, effectively deeming the death penalty as inadmissible. The previous language of the paragraph was similar to our rarest of the rare cases doctrine and allowed death penalty in cases of absolute necessity when non-lethal means are insufficient. The new language reads as under:

2267. Recourse to the death penalty on the part of the legitimate authority, following a fair trial, was long considered an appropriate response to the gravity of certain crimes and acceptable, albeit extreme, means of safeguarding the common good.

Today, however, there is an increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes. In addition, a new understanding has emerged of the significance of penal sanctions imposed by the state. Lastly, more effective systems of detention have been developed, which ensure the due protection of citizens but, at the same time, do not definitely deprive the guilty of the possibility of redemption.

Consequently, the Church teaches, in the light of the Gospel, that ‘the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person’, and she works with determination for its abolition worldwide.

In light of the aforementioned arguments and extractions, I believe that the Supreme Court shall follow its precedents and the recent trends, and declare Section 3(2)(i) of the Atrocities Act, 1989 as unconstitutional and uphold the phrase: Life imprisonment is the rule, and death penalty an exception!

[1] It was stated in the recommendations section that: “Having regard, however, to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risks the experiment of abolition of capital punishment.”

[2] It was stated in the recommendations section that “The march of our own jurisprudence – from removing the requirement of giving special reasons for imposing life imprisonment instead of death in 1955; to requiring special reasons for imposing the death penalty in 1973; to 1980 when the death penalty was restricted by the Supreme Court to the rarest of the rare cases – shows the direction in which we have to head. Informed also by the expanded and deepened contents and horizons of the right to life and strengthened due process requirements in the interactions between the state and the individual, prevailing standards of constitutional morality and human dignity, the Commission feels that time has come for India to move towards abolition of the death penalty.” I have extracted the paragraphs from the 35th and the 262nd Report of the Law Commission for the sole reason to reflect that how the Commission has evolved. With a positive change in the socio-economic and educational status of the countrymen, the Commission has evolved its understanding and itself has moved from accepting the death penalty as justifiable to recommend its abolition.

Anmol is a 3rd year BA LLB (Hons.) student at NLU Jodhpur.

Image Credits – The Times of India